Citation Nr: 1520251
Decision Date: 05/12/15 Archive Date: 05/26/15
DOCKET NO. 12-01 779 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUES
1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder.
2. Entitlement to service connection for diabetes mellitus, type II.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D. Whitehead, Counsel
INTRODUCTION
The Veteran served on active duty from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts (RO).
During the April 2014 hearing before the Board, the Veteran raised an informal claim of service connection for hypertension. This issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2014).
REMAND
Psychiatric Disorder, To Include Posttraumatic Stress Disorder
The Veteran seeks service connection for posttraumatic stress disorder (PTSD) due to his military service and has identified three in-service stressors he attributes to his diagnosis. First, he claims that from approximately April 1969 to August 1969 during his service aboard the U.S.S. Severn, he was required to clean tanks that held hazardous chemicals, to include oil and jet fuel, without the benefit of protective clothing or masks. The Veteran claims that he was informed by civilian contract workers that this work was dangerous and should not be performed without protective gear. Although he states he reported this to his superior, the Veteran asserts that he was told to continue to perform this task, which he claims caused him to feel fearful of suffering physical damage due to exposure to hazardous chemicals. As his remaining stressors, the Veteran claims that he was physically assaulted by fellow service members in March 1969 and that he was involved in the recovery of dead bodies from a freight ship that went down in the Atlantic Ocean in December 1969.
Service personnel records verify that the Veteran was assigned to the U.S.S. Severn from April 1969, and his DD Form 214 lists his military occupational specialty as a boatswain's mate. In a November 2007 decision, the Board found that, given his confirmed service aboard the U.S.S. Severn and military occupational specialty, the Veteran was likely exposed to jet fuel and oil as part of his duties as a boatswain's mate.
In connection with his psychiatric treatment, the Veteran underwent a VA PTSD assessment in October 2009, the results of which the examiner found to be consistent with a diagnosis of PTSD. In providing the Veteran with a formal Axis I diagnosis of PTSD, the examiner that the Veteran was exposed to three traumatic events in service, which consisted of the in-service exposure to hazardous chemicals, the physical assault incident, and the incident involving recovery of dead bodies. The examiner also noted that the Veteran worked as a police officer for twenty-five years after service and that he reported being exposed to a number of traumatic events while working in this capacity, to include suicides of three individuals. However, the examiner did not provide an opinion as to whether the Veteran's PTSD diagnosis was based on any of his military stressors or whether the disorder was due to the stressors that occurred during his civilian employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that an opinion's probative value is determined by whether it is supported by a detailed rationale). Therefore, the October 2009 VA PTSD assessment does not provide an adequate basis upon which to grant the claim for service connection.
In this regard, the Veteran has not been afforded a VA examination to determine the etiology of his claimed psychiatric disorder. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). As the medical evidence does not include an adequate etiological opinion for the Veteran's diagnosed PTSD, he must be scheduled for a VA examination and an adequate medical opinion must be obtained regarding whether the claimed disorder is related to his military service. See 38 U.S.C.A. § 5103A (West 2014); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Diabetes Mellitus
Regarding the remaining issue on appeal, the Veteran claims that his diagnosed diabetes mellitus is due to in-service exposure to hazardous chemicals, to include oil and jet fuel. As noted above, VA has conceded that given the Veteran's military occupational specialty as a boatswain's mate, he was likely exposed to jet fuel and oil during his military service. However, he has not been afforded a VA examination to determine whether his diabetes mellitus diagnosis is related to this in-service exposure. Thus, the claim must be remanded so that the Veteran may be scheduled for an examination and an etiological opinion obtained with respect to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates a claimed disability may be associated military service for the purposes of a VA examination).
Accordingly, the case is remanded for the following action:
1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.
Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain all outstanding VA treatment records pertinent to the claims.
All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond.
2. After completion of all necessary records development, the Veteran must be afforded a VA examination by an appropriate examiner to ascertain whether any diagnosed psychiatric disorder, to include PTSD, is related to his military service. All tests or studies necessary to make this determination must be ordered. The claims file and all pertinent electronic records must be made available to the examiner, and the examiner must specify in the opinion that these records have been reviewed. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record.
The examiner must provide diagnoses for all psychiatric disorders found. The examiner must integrate the previous psychiatric findings and diagnoses to obtain a true picture of the nature of the Veteran's psychiatric status.
Based on a review of the evidence of record and with consideration of the lay statements of record, the examiner must provide an opinion as to whether any diagnosed psychiatric disorder is related to the Veteran's military service.
If the Veteran meets the criteria for a diagnosis of PTSD, the examiner must specify the stressor or stressors that serve as the underlying basis for this diagnosis, and also provide as much detail as possible concerning each alleged stressor relied on in rendering the diagnosis. The examiner must also specify whether each stressor established by the record was sufficient to produce PTSD; and whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiner.
The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.
3. The Veteran must be afforded a VA examination by an appropriate to ascertain the nature and etiology of his diagnosed diabetes mellitus, type II. All tests or studies necessary to make this determination must be ordered. The evidence of record, to include all electronic records, must be made available to the examiner, and the examiner must specify in the examination report that the file has been reviewed. Based on the clinical examination, a review of the evidence of record and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's currently diagnosed diabetes mellitus, type II, was incurred in or due to his active duty service.
A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.
4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's VA file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable.
5. The RO must review the examination reports obtained to ensure that they are in complete compliance with the directives of this remand. The reports must be returned to the examiners if they are deficient in any manner and the RO must implement corrective procedures at once.
6. After completion of the above development, and any other development action that is deemed warranted, the RO must readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).